Lutfi Ghousheh v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUTFI GHOUSHEH,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 15-73386
Agency No. A070-064-547
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 14, 2018
Submission Deferred March 15, 2018
Resubmitted April 13, 2018
San Francisco, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and RAKOFF,** Senior
District Judge.
Petitioner Lutfi Ghousheh challenges the Board of Immigration Appeals’
(“BIA”) determination that Ghousheh is subject to the “terrorism bar” and is thus
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
FILED
APR 13 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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ineligible for cancellation of removal. We grant his petition and remand his case to
the agency for further proceedings.
An alien who “has received military-type training . . . from or on behalf of
any organization that, at the time the training was received, was a terrorist
organization” is barred from, among other forms of relief, cancellation of removal.
8 U.S.C. § 1182(a)(3)(B)(i)(VIII); see id. § 1229b(c)(4). As relevant here,
“terrorist organization” means “a group of two or more individuals, whether
organized or not, which engages in, or has a subgroup which engages in” terrorist
activities. Id. § 1182(a)(3)(B)(vi)(III). It is uncontested that, if not for this
terrorism bar, Ghousheh would be eligible for, and entitled to, cancellation of
removal.
In 1982, Ghousheh received three days of military training from the
Palestinian Liberation Army in Lebanon (“PLA in Lebanon”). The Immigration
Judge (“IJ”) found that, at the time, the PLA in Lebanon was a subgroup of the
Palestinian Liberation Organization (“PLO”) and that the PLO was a terrorist
organization. The BIA saw no clear error in these findings, and substantial
evidence supports both.1
1 As to the former finding, record evidence indicates that in 1982 countries
such as Jordan, Iraq, Syria, and Egypt had PLA brigades attached to, and taking
orders from, their respective militaries. The same evidence, however, indicates
that Lebanon did not. Ghousheh testified that, instead, the PLA in Lebanon was
taking at least some of its orders from the PLO.

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Based on these findings, the BIA concluded that the terrorism bar applied,
reasoning that “the PLA [in Lebanon], as part of the PLO, thus was also a terrorist
organization,” and so Ghousheh had “received military-type training from a
terrorist organization.” This reasoning conflicts with the plain terms of the statute.2
Again, as relevant here the term “terrorist organization” means “a group of two or
more individuals, whether organized or not,” which either (1) “engages in” terrorist
activities itself, or (2) “has a subgroup which engages” in terrorist activities. Id.
§ 1182(a)(3)(B)(vi)(III). Although the PLA in Lebanon was clearly “a group of
two or more individuals,” nothing in the record suggests that, as it existed in 1982,
the PLA in Lebanon met either of the other two statutory criteria.
The government urges us to deny Ghousheh’s petition nevertheless, arguing
that although Ghousheh received military training “from” the PLA in Lebanon, his
training was still received “on behalf of” the PLO. But we “cannot deny a petition
for review on a ground that the BIA itself did not base its decision.” Hernandez-
As to the latter finding, an expert in Middle Eastern Studies testified that
around the same time the PLO itself engaged in terrorist activities. Record
evidence also indicates that a PLO subgroup called Al-Fatah engaged in terrorist
activities, including the killing of thirty-four Israelis near Haifa in 1978.
2 “Where—as here—a BIA decision interpreting a statute is ‘unpublished
and issued by a single member of the BIA,’” the decision receives only deference
“proportional to its thoroughness, reasoning, consistency, and ability to persuade.”
Lezama-Garcia v. Holder, 666 F.3d 518, 524-25 (9th Cir. 2011) (quoting Mejia-
Hernandez v. Holder, 633 F.3d 818, 822 (9th Cir.2011)).

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Cruz v. Holder, 651 F.3d 1094, 1110 (9th Cir. 2011). And here the BIA denied
relief solely on the ground that Ghousheh received military training “from” the
PLA in Lebanon.3 Indeed, the body of the BIA’s decision never mentions the
statutory phrase “on behalf of.” We therefore grant the petition and remand to the
BIA so that the BIA may consider in the first instance whether Ghousheh is subject
to the terrorism bar for the reasons on which the Government now relies.
PETITION GRANTED AND REMANDED.
3 We review only the BIA’s decision, except where it expressly incorporates
the IJ’s decision. See Zumel v. Lynch, 803 F.3d 463, 471 (9th Cir. 2015).

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